Nermy Del Rio v. Russell Engineering, inc (Fla. 3d DCA

Del Rio v. Russell Engineering, Inc., No. 3D21-1624 (Fla. 3d DCA Nov. 23, 2022) (Logue, J.; Scales and Hendon, JJ.). Appeal from the Circuit Court for Miami-Dade County, Judge Oscar Rodriguez-Fonts (Lower Tribunal No. 19-10169). Reversed and remanded.

Facts

Parties. Appellant Nermy Del Rio was the plaintiff below, a motorist. Appellee Russell Engineering, Inc. was the defendant, a contractor performing roadwork on West Flagler Street in Miami-Dade County under a contract with the Florida Department of Transportation.

What happened. Del Rio alleged that his vehicle struck a protruding manhole cover while he was traveling westbound on West Flagler Street somewhere between 16th Avenue and 17th Avenue, an area where Russell Engineering was working at the time. He sued for negligence and premises liability.

The evidence. In his first deposition, Del Rio testified at least three separate times, unequivocally, that the manhole cover was on West Flagler Street between 16th and 17th Avenues. He could not recall which of the two westbound lanes he was in. He produced close-up photographs, taken at some unremembered time after the accident, showing a manhole cover with a “W” in the center surrounded by white striped circles. Almost two months later, at a second deposition, defense counsel showed him a Google Earth image of the area and asked whether it showed the cover he struck.

He answered “I believe it is,” and pointed to a cover in the right lane marked “sewer” with embedded dots. The same image showed a water-main cover in the left lane with a boxed “W.” Both Del Rio’s own expert and Russell Engineering’s corporate representative agreed that the cover in Del Rio’s close-up photos did not match either cover present in the westbound lanes between 16th and 17th.

Procedural history. Russell Engineering moved for summary judgment, arguing the cover Del Rio claimed to have struck was not located in any westbound lane of West Flagler Street near 17th Avenue, and that no cover in the area he identified resembled the one in his photographs. Del Rio opposed the motion on the strength of his deposition testimony fixing the location. The trial court granted summary judgment, finding Del Rio had not produced sufficient evidence that the cover he struck was between 16th and 17th, and that he lacked evidence of any other location or of Russell Engineering’s work at any other location.

Judgment. The Third District reversed the final summary judgment and remanded for further proceedings, holding that the location of the manhole cover was a genuine issue of material fact for the jury.

Issues

1. Whether a plaintiff’s unequivocal, repeated deposition testimony about the location of a hazard creates a genuine issue of material fact sufficient to defeat summary judgment.
2. Whether photographic evidence (the plaintiff’s own close-up photos and the defense’s Google Earth image) that appears inconsistent with that testimony “blatantly contradicts” it so that a court may disregard the testimony under Scott v. Harris and Wilsonart.
3. Whether a plaintiff’s later, tentative misidentification of the hazard in a photograph (“I believe it is”) eliminates the factual dispute created by his earlier testimony.

The Holding in Del Rio v. Russell Engineering

1. Yes. Del Rio’s testimony that the manhole cover was on West Flagler Street between 16th and 17th Avenues was, by itself, sufficient to establish a disputed issue of material fact as to location. The trial court erred by relying only on the photographs and the witnesses’ testimony about the photographs while failing to consider and weigh Del Rio’s testimony.
2. No. The photographs did not “blatantly contradict” the testimony. Del Rio’s photos were taken at an unknown time after the accident and the defense’s Google Earth images were dated a month afterward, so neither conclusively established how, or where, the manhole appeared on the accident date. Wilsonart, LLC v. Lopez, 308 So. 3d 961, 963 (Fla. 2020) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
3. No. A reasonable jury could conclude that Del Rio’s second-deposition identification of the right-lane sewer cover, rather than the left-lane water-main cover, was simply a mistake, as his own expert suggested, particularly because he had already testified he could not recall which lane he was in. Taken together, the testimony and the photographs present a question of fact for the jury.

Rationale

Standard of review and the summary judgment test. The court reviewed the summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). An issue is “genuine” if it could allow a jury to return a verdict for the non-movant, and “material” if it could bear on the outcome under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Where the evidence raises any issue of material fact, is conflicting, or permits different reasonable inferences, the question goes to the jury. Moore v. Moore, 475 So. 2d 666, 668 (Fla. 1985).

Testimony is evidence, and it cannot be skipped over. The core error was one of omission. The trial court weighed the photographs and the expert and corporate-representative testimony about the photographs, but “seemingly fail[ed] to consider and give weight to” Del Rio’s own account. Because that account was clear and repeated (three times in the first deposition, including a correction to defense counsel that the block was 16th to 17th, not 15th to 17th), it was competent evidence on the dispositive fact of location.

The “blatantly contradicted” exception is narrow. Under Scott v. Harris, as adopted in Florida by Wilsonart, a court may disregard a party’s version of events at summary judgment only when it is so contradicted by objective record evidence (there, a video) that no reasonable jury could believe it. The Third District held the photographs here did not clear that bar. Nobody could say when Del Rio’s close-ups were taken, and the defense’s Google Earth capture post-dated the accident by a month. A photograph that cannot be tied to the accident date cannot conclusively disprove what the road looked like on the accident date. The inconsistency went to weight and credibility, not to whether a dispute existed at all.

A hedged misidentification is a jury question, not a concession. The defense built its motion on Del Rio pointing to the “wrong” cover in the Google Earth photo. The court treated that as exactly the kind of conflict a jury sorts out: a plaintiff who never knew which lane he was in, answering “I believe it is” to a satellite image, could plausibly have picked the sewer cover when he meant the water-main cover. His expert said as much. Where the record permits that inference, summary judgment is unavailable.

Practitioner takeaways. For movants: a photographic mismatch is not enough unless you can also fix the photograph in time and place so that it truly forecloses the other side’s testimony. Undated or after-the-fact images invite exactly the “neither party’s photograph conclusively establishes” finding made here. For non-movants: unequivocal deposition testimony on the disputed fact, standing alone, can carry the day, so lock it in early and, if the witness later wavers, be ready with an explanation the jury could accept (here, the expert’s “mistake” theory).

Finally, note that the opinion applies the Anderson / Scott v. Harris framework that now governs Florida summary judgment practice under amended Rule 1.510. Even under that more movant-friendly standard, the Third District would not let a Google Earth screenshot testify in place of the plaintiff.

Some things a satellite simply cannot see, and one of them is what a manhole cover looked like on the day of the accident. An X marked on a satellite image by a witness who never knew which lane he was in is a guess, not a treasure map; as a certain bearded captain of the Carolina coast is said to have boasted, nobody but himself and the devil knew where the thing really lay.

Full Opinion

Read the Third District’s opinion: Del Rio v. Russell Engineering, Inc., No. 3D21-1624 (Fla. 3d DCA Nov. 23, 2022) (PDF). Also available on Justia.